RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0172P (6th Cir.) File Name: 00a0172p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 98-4205 v.  > JEFFREY LEE JACKSON,  Defendant-Appellant.  1 Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00090—James L. Graham, District Judge. Argued: May 2, 2000 Decided and Filed: May 23, 2000 Before: MERRITT, JONES, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Gordon Hobson, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. David J. Bosley, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: Gordon Hobson, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. David J. Bosley, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

1 2 United States v. Jackson No. 98-4205

_________________ OPINION _________________ MERRITT, Circuit Judge. Eighteen U.S.C. § 2119, the federal carjacking statute, states, as amended and in relevant part: Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall - (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death. (Emphasis added.) A federal grand jury returned a one count indictment against defendant Jeffrey Lee Jackson that charged intent to injure without charging bodily injury under § 2119(2): On or about the 25th day of February 1998, in the Southern District of Ohio, Jeffrey Lee Jackson, by force, violence or intimidation, with the intent to cause death or serious bodily injury, did take from Charles Chope, a 1988 Chevrolet Corvette, which had been transported, shipped or received in interstate commerce. In violation of 18 U.S.C. § 2119. (Emphasis added.) 6 United States v. Jackson No. 98-4205 No. 98-4205 United States v. Jackson 3

jury that asked whether serious bodily injury resulted from the Defendant was convicted by a jury of violating the federal carjacking, Jackson’s counsel timely objected to the district carjacking statute, 18 U.S.C. § 2119; and he now argues that, court’s actions, arguing that the indictment made no reference in light of the recent Supreme Court decision handed down in to § 2119(2) and directed the court to the then pending Jones Jones v. United States, 526 U.S. 227, --, 119 S. Ct. 1215 case. Finally, as in the instant case, the Jones district court (1999) (holding that the three subsections of § 2119 are adopted the presentence report’s 25-year sentence elements of the crime to be charged and proved, not merely recommendation because one of the victims had in fact sentence enhancements as courts of appeals had previously suffered serious bodily injury. The Jones defendant objected held), the district court erred in sentencing him to 25 years to his sentence and, on appeal, the Supreme Court held that imprisonment because his indictment merely alleged that the three paragraphs of § 2119 are to be construed as Jackson had the intent to cause “serious bodily injury,” but “establishing three separate offenses by the specification of failed to allege that he had in fact caused such an injury under distinct elements, each of which must be charged by § 2119(2). In the absence of any constitutional harmless error indictment, proven beyond a reasonable doubt, and submitted analysis offered by the government, we must reverse and to a jury for its verdict.” Jones, 119 S.Ct. at 1228. remand because of the intervening Jones case. In this case, as in Jones, the indictment charging Jackson I. did not make direct reference to § 2119(2), and the district court incorrectly construed the statute’s paragraphs as The facts of this case are undisputed. On February 25, sentencing enhancements. The wording of Jackson’s 1998, Charles Chope, the victim, drove his 1988 Corvette a indictment, alleging a carjacking with intent to cause serious block and a half from his home in Upper Arlington, Ohio, to bodily injury, varies from the conviction Jackson received, a nearby supermarket to buy a few items. Upon leaving the which was of committing a carjacking which resulted in market, Chope discovered his battery had died. While he was serious bodily injury. The variation between the conviction waiting for AAA to arrive and help him start his car, Chope and sentence and the indictment is essentially the same as in was approached by Defendant who stated that he, too, was Jones. Although Jackson’s conduct was outrageous and having car trouble. After speaking only very briefly with deserving of the 25-year sentence, we are constrained by the Jackson, Chope got into his car, which had been jump-started Supreme Court’s opinion in Jones to instruct the district court by the AAA serviceman, and returned home. Chope parked to reduce the sentence to 15 years. Despite evidence in the his car in a detached garage and began walking toward his record that may indicate that Jackson was sufficiently on apartment when he noticed Jackson run around the corner notice that he potentially faced a 25-year sentence under with what appeared to be a semiautomatic handgun. Jackson § 2119(2), the government has not raised any question of pointed his weapon at Chope and told them that he wanted harmless error. Government counsel did not seek to advance some money. Jackson then struck Chope in the face with the a constitutional harmless error analysis, even after we asked weapon and ordered him to get into the passenger seat of the about it at oral argument, and we therefore do not address, but Corvette. rather pretermit, any harmless error analysis that could be advanced. Jackson drove into the drive-through teller at Chope’s bank. Under threat of death, Chope withdrew $150.00 from his Accordingly, we vacate the sentence issued by the district account and gave the money to Jackson. Jackson then drove court and remand for resentencing in accordance with this the car to a local recreation area, Hayden Run Falls, and, after opinion. parking, ordered Chope to get out and walk along a trail that 4 United States v. Jackson No. 98-4205 No. 98-4205 United States v. Jackson 5

winds down to the bottom of the falls. Jackson closely because it would be obvious to the jury that Chope had been followed Chope and, soon after they had begun walking along seriously injured once he entered the courtroom. the trail, Jackson suddenly pushed Chope off of a nearby cliff. Chope fell approximately 50 feet into a rocky ravine and Jackson again raised the same issue at the close of trial landed on his back in a few inches of water. Fortunately, it when he objected to a portion of the special verdict form that was an unseasonably warm February day and two hikers asked if serious bodily injury did or did not result from the discovered the seriously injured Chope, who was conscious, commission of the offense. The district court again overruled but in a lot of pain and unable to move. Chope explained to the objection. After deliberation, the jury returned with a the hikers what had happened and one tended to him while the verdict, finding Jackson guilty of the charge in the indictment other called 911. Chope was rescued by emergency service and that serious bodily injury did result. personnel and taken to the hospital. At the sentencing hearing, Jackson objected to the Chope had sustained life-threatening injuries, with the most presentence investigation report’s determination that the serious injury being two broken vertebrae in his back. statutory penalty was 25 years instead of 15 years, again Although it was unclear at first if Chope would live, he was raising the argument that serious bodily injury was not alleged ultimately stabilized. Despite undergoing several surgeries, in the indictment. The court overruled the objection, today Chope remains permanently paralyzed from the waist concluding that it was not necessary for the language at issue down with what doctors deem a zero chance of ever again to be included in the indictment because it went only to walking unassisted. sentencing. The court also noted that through a special interrogatory the jury had found beyond a reasonable doubt At trial, Jackson objected when the prosecution sought to that serious bodily injury was sustained as a result of this introduce medical testimony establishing the extent of the offense. The court then sentenced Jackson to 25 years in injuries suffered by Chope, arguing that the indictment only prison, a five-year term of supervised release, and $309,546 alleged the intent to cause serious bodily injury and that any in restitution. actual serious bodily injury that resulted from Jackson’s actions went to a separate element of the offense not alleged II. in the indictment. Defense counsel admitted that there was no case law on point in support of this argument, but he referred The issue in this case is whether the Supreme Court’s ruling the district court to the Supreme Court’s decision to grant in Jones v. United States issued subsequent to Jackson’s certiorari in Jones v. United States, 118 S. Ct. 1405 (1998), conviction, but while his appeal was pending, compels us to on the question of, first, whether paragraphs (1) through (3) vacate his 25-year sentence and remand for resentencing. In of 18 U.S.C. § 2119 describe sentencing factors or elements Jones, the defendant was charged with violating the federal of the offense and, second, if the paragraphs were deemed carjacking statute, but the indictment failed to “reference the sentencing enhancements, whether the statute was statute’s numbered subsections and charged none of the facts constitutional. The district court overruled the objection, mentioned in the latter two.” 119 S. Ct. at 1218. The same concluding that current case law supported the view that the is true in the instant case. Also in Jones, the subsequent jury paragraphs were sentencing enhancements, and the court then instructions issued by the district court “defined the elements admitted the medical testimony because it was relevant to subject to the Government’s burden of proof by reference several facets of the government’s case against Jackson and solely to the first paragraph of § 2119, with no mention of serious bodily injury” having actually occurred. Id. Although the district court here transmitted a special verdict form to the